A call came from the father of a young man whose son was friends with mine.  It seems the young woman his son dated explained to her subsequent suitor that the reason they broke up was that he was “emotionally and physically abusive” toward her.  The new suitor, as one might expect, spread the word, and it quickly caught the attention of the dorm advisor.

As it turned out, the young woman’s story fell apart almost immediately.  She conceded that it wasn’t “really” true, but rather seemed like a good explanation at the time, both to justify the break up and make her appear more sympathetic to her new suitor.  She never thought it would spread to official channels. When it did, she showed the integrity to admit her lie.  No student was harmed in the making of this story.

But the father asked me, as a lawyer, what his son could do to protect himself from such accusations, recognizing that it could have devastated his son’s life had the young woman not owned up to her “white lie,” as she saw it.  I had nothing to offer. Anyone can say anything about anyone, and there is no neutral witness in the bedroom.

At Concurring Opinions, Corey Yung raises the California Affirmative Consent discussed by Cathy Young at Reason, Volokh Conspiracy’s David Bernstein, and before them, by Hans Bader.  Me too.  But Corey brings an interesting twist to the question of whether Affirmative Consent is the solution, even if there remains a question about what problem it would solve.

Every semester that I teach my Sex Crimes seminar, we discuss the Antioch College rule, Michelle Anderson’s article advocating a similar rule, and affirmative consent in general. I think the pattern of my class discussion is informative regarding the arguments that Young and Bernstein make. Initially, every student is hostile to the Antioch approach (which is broader than the California proposal). They generally come to agree that the rule is at odds with romance and spontaneity in the bedroom. Indeed, the idea of someone forming several oral contracts for each intimate encounter sounds like a “turn-off” to most of my students.

Corey’s reliance on the “turn-off” explanation may strike some as a strawman, but I take it as merely descriptive of how his class responds to the idea.  There are better, harder, reasons to question the efficacy of affirmative consent beyond that’s not romantic.  For example, Hans Bader notes:

The “affirmative” consent requirement would not help rape victims or prevent rape, since rapists, who already lie about whether they have committed rape, will just lie and claim the victim said “yes” to sex. A person who lies about committing rape will also lie about the presence of “affirmative consent.” A violent rapist is not going to suddenly change his ways just because someone tells him that consent (which he disregarded in the past by doing things against the will of the victim) must now be explicit or “affirmative.”

There is a naiveté associated with these initiatives, where their proponents believe that because it’s the new rule, people who are engaged in wrongdoing otherwise will nonetheless adhere to it.  Then again, the entirety of bedroom negotiations is a he said/she said proposition regardless, which is why proponents presume one side to be the victim and the other to be the perpetrator.

But Corey’s class, initially antagonistic to the affirmative consent rule, was put to the Socratic test:

When I add a few wrinkles, however, the students become big fans of affirmative consent. I ask if they would be comfortable if a date started tying them up and spanking them with a leather whip without getting affirmative consent? Would they be okay if someone initiated anal sex without asking?

So, why do they support affirmative consent in those situations, but not in the case of heterosexual vaginal sex? The answer seems to be based upon each student’s norms and conception of deviance. For atypical (subjectively defined) sex acts, students want an affirmative consent model. For “normal” acts based upon a cultural narrative of what is “supposed to happen,” negative consent is sufficient.

This is unsurprising from a human perspective.  We want what we want, and don’t want what we don’t want.  Based upon individual norms, the desire for control moves all over the place. No jokes please about what’s “normal” and what’s not.  Everybody is allowed their own feelings on the subject.

As Bernstein points out in a comment to Corey’s post, this isn’t about people’s preferences in their sexual partners, but about creating laws of engagement in the bedroom.

Cathy and I are talking about an actual bill that may very well become law, that would dictate penalties to students for sexual assault. Consider this language. “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” So if you are going to ask about the tying and whip hypo, or the anal sex hypo, what you need to ask is not “how do you feel about affirmative consent in these contexts” in the abstract, but “how do you feel about a law that would require a university to punish a student as a rapist for not getting affirmative consent for initiating these activities, even if the couple was at the time involved in a romantic relationship and had engaged in these activities many times before, and even if the initiating party stopped immediately when asked?”

Notably, there is no qualification for the fact that someone honored the “no means no” meme, and the crime was already complete.  Though curiously, Bernstein then adds:

I can imagine much more narrowly tailored “affirmative consent” rules that might even be good ideas (like don’t attempt anal or vaginal sex for someone for the first time without affirmative consent).

I presume he means that he might support the California Anal Sex Act, or perhaps the California First Date and Vagina Act, though I wonder whether it will include an affirmative defense of purchasing a white table-cloth dinner.

Will such micromanagement of human relations work?  Do we want legislators arguing the relative merits of kinky sex? Wait, don’t answer that. Do we want legislators dictating the crimes that could be committed in our bedrooms for lack of magic words?  And more realistically, even if we did, would it serve to change any behavior other than that of the otherwise compliant person?  Because as Hans reminds us, those bent on rape might not be entirely inclined to tell the truth about affirmative consent.

I still have no answer for my friend, to help him advise his son to avoid false accusations. But I can well appreciate his concern and fear given the gender climate.

Update:  Okay, the update addition to the title was of shameless clickbait quality, but given the update, it makes perfect sense.  First, Michelle Dean at Gawker posts Law Professor: Only Prostitutes Would Directly Say “Yes” to Sex, addressing David Bernstein’s VC post, and reducing it to Gawker-level thoughtfulness.

Spinning out further into apoplexy, Bernstein moves on to trawling the web for inopportune statements. He spots one on the website of the Office for Violence Against Women (that hotbed of sexual fascism) where they explain that “sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient.”

Yes, that would be the DoJ Office of Violence against Women, which is always a good spot to do your apoplectic trawling.  Bernstein responded at the WaPo Conspiracy, but totally blew the headline, although he came up with it in the comments, which should have read “Gawker’s Michelle Dean thinks that Kissing Your Spouse is Rape.”  Come on, clickbait or what?